These Terms and Conditions (“Agreement”) govern and are incorporated by reference into every Insertion Order (“IO”) between Optimal Fusion, Inc. (“Optimal Fusion”) and PUBLISHER (“Company”).
1. Flighting. Company shall make every best effort to flight evenly Optimal Fusion campaign covered by the IO (the “Campaign”).
2. Cancellation Policy. Either party may cancel an IO at any time, with 48 hours written notice. Company agrees and acknowledges that Optimal Fusion reserves the right to terminate an IO at any time prior to the Start Time and/or Start Date set forth within the IO ("Early Termination"). In the event of Early Termination, Optimal Fusion shall not owe any payment to Company whatsoever.
3. Incentivized Clicks/Leads. No incentivized clicks or leads will be accepted at any time. If Optimal Fusion determines that leads or clicks have been incentivized, this IO contract will automatically terminate, and Company will forfeit all payments due under the IO. Company agrees and acknowledges that unless otherwise specified within the IO, all clicks delivered must be of USA IP based origin.
4. Billing. Company will not invoice Optimal Fusion for more than the contracted amount. All payments are due Net 30 days of completion of each month. Unless otherwise set forth by Optimal Fusion on the IO, Company agrees to hold Optimal Fusion liable for payments solely to the extent proceeds have cleared from the Advertiser to Optimal Fusion for advertising placed in accordance with the IO. For sums owing but not cleared to Optimal Fusion, Company agrees to hold the Advertiser solely liable. Company understands that Advertiser is Optimal Fusion’s disclosed principal and Optimal Fusion, as agent, has no obligations for payment under the IO or this Agreement, either joint or several, except as specifically set forth in this paragraph. Optimal Fusion agrees to make every reasonable effort to collect payment from the Advertiser on a timely basis. Optimal Fusion shall not pay for "over delivery" (payment is capped at the contracted amount). Optimal Fusion shall not be charged late fees, interest or other penalties or finance charges.
5. Reporting/Counting. All invoicing related to CPL/CPA buys will be based solely on Optimal Fusion’s lead counts in all instances with all CPL/CPA billing discrepancies resolved using Optimal Fusion’s lead counts. All invoicing related to CPC and CPM buys will be based on Optimal Fusion’s third-party ad server counts. In the event that Company’s ad server measurements are higher than those produced by Optimal Fusion’s third-party ad server by more than 10% over the invoice period, Optimal Fusion will facilitate a reconciliation effort between Company and the third-party ad server. If the discrepancy cannot be resolved and Optimal Fusion has made a good faith effort to facilitate the reconciliation effort, Optimal Fusion reserves the right to either:
a) Consider the discrepancy an under-delivery whereupon the parties shall make an effort to agree upon the conditions of a make good flight, or
b) Pay Company based on Optimal Fusion’s third-party ad server reported data, plus a mutually agreed upon adjustment to delivery.
6. Legal Compliance. In performance of its services, Company shall ensure that all of its activities on behalf of Optimal Fusion shall comply with all applicable laws, rules and regulations.
7. Indemnification. Company shall indemnify, defend and hold harmless Optimal Fusion, including its respective affiliates, subsidiaries and officers, members, shareholders, directors, employees, partners and designated agents thereof, from any and all third party claims, liability, damages, expenses and/or costs (including, but not limited to, any attorney’s fees and all expenses of any kind) arising from (1) Company’s alleged breach or breach of any term, representation, warranty, or covenant in this Agreement, (2) spam being sent to persons whose addresses appear on lists purchased from Company, although those individuals have opted-out of e-mail solicitations, (3) any failure of the opt-out mechanisms, any failure to honor opt-out requests, and all errors, mistakes, or inaccuracies in Company’s opt-in lists, as well as failure to incorporate any opt-out requests or opt-in lists provided by Optimal Fusion, (4) Company’s violation of any applicable law, rule, or regulation, including but not limited to, data privacy laws, and (5) any acts or omissions by Company or its affiliates. Optimal Fusion may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim at Optimal Fusion’s sole cost and expense. Company shall not settle any third party claim in a manner detrimental to Optimal Fusion without the written consent of Optimal Fusion. In the event Optimal Fusion is named as defendant in any action based on this Agreement or an IO subject to this Agreement, Company agrees to immediately notify Optimal Fusion, and Optimal Fusion shall have the right, but not the obligation to intervene in any such action and to control and direct the defense thereof.
8. Privacy. Company agrees to comply with the Digital Advertising Alliance Self-Regulatory Principles for Online Behavioral Advertising with respect to its data collection, usage, ownership and disclosures. Where any content is made available to any individual in the European Union, Company will duly observe all its obligations under European data protection legislation, and any other relevant data protection and privacy laws which may arise in connection with this Agreement. Notwithstanding the generality of the foregoing, Company agrees to bear sole responsibility for obtaining the lawful consent of any user whose equipment is accessed or used for the storage of a cookie or similar technology for the display of Optimal Fusion’s services in accordance with this Agreement.
c) European Union End User Consent Required. For end users in the European Union, Company shall ensure that all Company Sites: (a) disclose clearly, and obtain active consent to, any data collection, sharing and usage that takes place on any Company Sites as a consequence of Company’s use of the Services; and (b) ensure that end users are provided with clear and comprehensive information about, and actively consent to, the storing and accessing of cookies or other information on the end users’ devices where such activity occurs in connection with a product to which this Agreement applies.
d) California Consumer Privacy Act. In accordance with the Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq., (“CCPA”), Company shall not (a) sell Personal Data (as defined under CCPA), or (b) retain, use or disclose Personal Data (i) for any purpose other than for the specific purpose of performing this Agreement, or (ii) outside of the direct business relationship between Company and Optimal Fusion. Company shall cooperate with Optimal Fusion if an individual requests (i) access to his or her Personal Data, (ii) information about the categories of sources from which the Personal Data is collected, or (iii) information about the categories or specific pieces of the Personal Data. Company shall immediately inform Optimal Fusion in writing of any requests with respect to Personal Data. Upon Optimal Fusion’s request, Company shall immediately delete a particular individual’s Personal Data from Company’s records. In the event Company is unable to delete the Personal Data for reasons permitted under the California Consumer Privacy Act, Company shall (i) promptly inform Optimal Fusion of the reason(s) for its refusal of the deletion request, (ii) ensure the privacy, confidentiality and security of such Personal Data, and (iii) delete the Personal Data promptly after the reason(s) for Company’s refusal has expired. Where Company provides to a third party access to Personal Data, or contracts any of its rights or obligations concerning Personal Data to a third party, Company shall enter into a written agreement with each such third party that imposes obligations on the third party that are equivalent to those imposed on Company under this Agreement. The Parties acknowledge and agree as follows: The Personal Data that Optimal Fusion discloses to Company, if any, is provided to Company for a business purpose, and Optimal Fusion does not sell Personal Data to Company in connection with the Agreement. The Parties hereby agree and understand that Company is a Service Provider (as defined under CCPA) to Optimal Fusion, and as such Company shall at all times ensure compliance with this Section 8(b).
e) Opt-Out Mechanism. On desktop and mobile websites, the Opt-Out Mechanism shall be a link to at least one of the SRP opt-out pages, which are currently located at http://www.networkadvertising.org/choices, http://www.aboutads.info and http://www.youronlinechoices.eu. On Mobile Apps, the Opt-Out Mechanism will be a description of how an end user can access a privacy device setting (e.g., Apple iOS Limit Ad Tracking).
f) Geolocation. Where Company collects, processes or discloses Precise Geolocation Data for advertising purposes, including Cross-App Advertising, from a Company Site to Optimal Fusion: (a) Company shall ensure that the Company Site obtains express (i.e., opt-in) consent from end users; and (b) the Company Site shall prominently post notice to end users: (i) that their Precise Geolocation Data may be shared with third parties; and (ii) the purposes for which such data may be used.
g) COPPA. Optimal Fusion is in compliance with the Children’s Online Privacy Protection Act of 1998 (“COPPA”) and amendments thereto. Company represents and warrants that it shall: (a) comply with COPPA; (b) designate to Optimal Fusion all Company Sites as having children’s or non-children’s content; (c) designate to Optimal Fusion if any Company Sites knowingly collect any personal information, as defined by COPPA, from children under the age of thirteen; and (d) promptly notify Optimal Fusion in the event that either its Company Sites become covered by COPPA or if Company’s policy on data collection, use or disclosure from children under the age of thirteen changes.
9. Non-Compete. Company agrees that it will not engage, contract with, nor license the Advertiser in any digital marketing relationship, nor permit any person, firm, or entity associated with Company to represent or engage the Advertiser in any digital marketing relationship until six months after written notice by either party of termination of this Agreement.
10. Limitation of Liability. IN NO EVENT WILL OPTIMAL FUSION, ITS RESPECTIVE AFFILIATES OR THIRD PARTY SERVICE PROVIDERS, BE LIABLE FOR ANY LOST PROFITS, LOST DATA, OR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OPTIMAL FUSION’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE UPON WHICH SUCH CLAIM AROSE. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH HEREIN AND THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
11. Non-Disclosure. During the period of this Agreement and thereafter Company will not disclose any of Optimal Fusion’s negotiated rates or deals.
12. Direct Delivery. Company hereby agrees and acknowledges that unless otherwise agreed in writing, Company shall deliver the Campaign directly or through affiliates or partners. In cases where Company relies on affiliates or partners to deliver inventory, Company shall only use trusted affiliates and partners who have been reviewed and approved in keeping with Company’s affiliate or partner screening process. Company shall not use any non-affiliated sub-distributor, sub-contractor, or other third parties to deliver the Campaign or otherwise comply with the IO, unless agreed upon in writing with Optimal Fusion.
13. Passive Conduit. Company agrees and acknowledges that Optimal Fusion is acting only as a passive conduit for the distribution and publishing of the Campaign, and shall not be held responsible for any liability, loss, cost, claim or expense arising out of or relating to the Campaign. Optimal Fusion has no obligation to Company and undertakes no responsibility to review any or all of the Campaign.
14. Severability. If any provision of this Agreement or an IO subject to this Agreement is held to be unenforceable for any reason, it shall be modified rather than voided, if possible, in order to achieve to the extent possible the intent of the parties to this Agreement and/or the IO. In any such event, all other provisions of this Agreement and the IO shall be deemed valid and enforceable to the fullest extent possible.
15. Incorporation of Terms. The terms and conditions of this Agreement shall be incorporated in and constitute a part of each IO entered into by and between Optimal Fusion and Company.
16. Optimal Fusion Terms Supersede. Company’s online click-through, browse through, terms, conditions and/or policies (“Online Terms & Conditions”) shall not be deemed to have modified this Agreement, notwithstanding any requirement to technically click on and/or fill-in any check-in boxes in order to access any online service and/or interface. If any conflict shall arise between this Agreement and any other attached terms, or Online Terms & Conditions, the terms of this Agreement shall supersede.
17. Use of Advertiser’s Trademarks. Company shall not use any trademarked terms unless expressly authorized to do so by email.
18. E-mail Campaigns. The following are only applicable to the extent this Agreement or an IO subject to this Agreement applies to e-mail campaigns:
a) All e-mail solicitations must originate from "opt-in" or "negative opt-in" sources only, and require a viable "opt-out" option through a link for consumers wishing not to receive further advertisements, solicitations, or communications from Company. (A negative opt-in refers to user acceptance of a clearly visible pre-checked opt-in choice). Company will remove any e-mail record from mailing list for which Company cannot identify the date and website from which the user opted-in or accepted a negative opt-in to receive e-mail offers. In the instance of any request for information due to an abuse or spam report, Company will send all requested information or data to Optimal Fusion within 48 hours of written request.
b) If specified in the IO, Company will send e-mails containing advertisements to end users to which Company has obtained rights (either directly or through a third party list provider) to provide information about products or services from companies represented by Optimal Fusion. E-mails shall be sent on the times and dates chosen by Optimal Fusion. Company may not make changes to the content of the emails or subject lines without express written consent by Optimal Fusion.
c) Company shall only be paid for e-mails actually received within the time parameters set forth in the IO, with no payment for e-mails "mailed" or "sent" or which are otherwise outside of the time and/or date parameters of the IO.
d) In consideration of the mutual agreements set forth below, the parties agree as follows:
i) Company represents and warrants that:
(1) All electronic mail messages that Company initiates, obtains or sends shall comply with all aspects of the CAN-SPAM Act of 2003, as amended (the “Act”) and the FTC CAN-SPAM Rules. Moreover, all electronic mail messages shall:
(a) Contain header information that is completely accurate.
(b) Not contain or include a falsified sender domain or a non-responsive IP addresses.
(c) Utilize a “from” line that is not fraudulent or misleading and accurately identifies Company (or Advertiser if requested).
(d) Include a functioning return/reply email address for unsubscribe purposes and an unsubscribe link that works for at least thirty (30) days from the date the electronic mail message is transmitted.
(e) Be identified as an advertisement or solicitation.
(f) Contain Company’s valid, physical postal address, an accurately registered post office box or private mailbox established under US Postal Service regulations to satisfy the Act’s requirements.
(2) Company shall not redirect campaign links to another offer once lead caps are met. Optimal Fusion must be notified to get approval to extend the lead cap of the offer or Optimal Fusion must be notified that the offer will expire.
(3) Company does not, and will not, engage in deceptive conduct, including, without limitation, e-mail address harvesting, falsifying routing or header information, dictionary attacks or any other acts that may be considered deceptive.
(4) Company does not and will not buy, exchange, lease, release or sell the electronic mail addresses of those individuals that have submitted an unsubscribe request to Company and have not subsequently provided an affirmative consent.
(5) Company agrees not to revise, alter or modify the creative provided by Optimal Fusion without first receiving Optimal Fusion written consent for such changes, provided, however, that from time to time, Company may submit to Optimal Fusion in the test electronic mail message that must be approved in writing by Optimal Fusion prior to transmission, a revised subject line. An Optimal Fusion written approval of such test electronic mail message shall indicate that the content, including, but not limited to the goods and services being promoted, and the subject line, are not fraudulent, deceptive or misleading.
(6) Company shall process all unsubscribe requests in connection with an Electronic Mail Message within five (5) business days of its receipt of such request, and shall maintain electronic or tangible records evidencing the date and time of removal of such Electronic Mail Address from its list/database, and shall provide such records to Optimal Fusion upon request.
(7) Company agrees to suppress a “do not mail” file containing Electronic Mail Addresses and/or domains in connection with any Electronic Mail Message provided by Optimal Fusion.
(8) Company does not, and will not, engage in any other conduct prohibited by the Act.
(9) Upon written notice from Optimal Fusion of a violation of the Act, Company agrees to immediately stop transmission of any Optimal Fusion electronic mail message.
ii) Optimal Fusion represents and warrants that:
(1) All electronic mail messages provided by Optimal Fusion, including, but not limited to the approved content, the goods and services promoted, and the approved subject line, shall not be fraudulent, misleading or deceptive.
(2) All Electronic Mail Messages provided by Optimal Fusion shall include Optimal Fusion’s valid, physical postal address, an accurately registered post office box or private mailbox established under US Postal Service regulations to satisfy the Act’s requirements.
(3) All electronic mail messages provided by Optimal Fusion shall include a functioning Optimal Fusion unsubscribe link, or conversely, Optimal Fusion shall provide Company, and all other advertisers with whom Optimal Fusion is promoting its electronic mail messages, with a functioning, Optimal Fusion unsubscribe link to implement in the Optimal Fusion electronic mail messages, that works for at least thirty (30) days from the date the electronic mail messages is transmitted.
(4) Optimal Fusion does not, and will not, engage in any other conduct prohibited by the Act.
iii) The terms of these representations and warranties shall supersede, govern and control in case of conflict with any other written or oral agreement between Optimal Fusion and Company with respect to the subject matter hereof.
19. CASL Compliance. Where (i) a commercial electronic message is sent to an electronic address, or (ii) a program is install on someone else’s computer or mobile device, Company represents and warrants that any and all of its electronic marketing activities on behalf of Optimal Fusion will comply with the Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (S.C. 2010, c. 23)) (“CASL”), and its implementing regulations adopted by the Canadian Radio Television and Telecommunications Commission (“CRTC”) (CRTC 2012-183) and Industry Canada (81000-2-175 (SOR/DORS)), as amended from time-to-time (collectively, the “Canadian Anti-Spam Law”). Publisher shall be responsible for all sub-affiliates, publishers, and third parties relating to such compliance. Company agrees to indemnify and hold Optimal Fusion and its subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of, or in connection with, any acts or omissions of the Publisher that would constitute a violation or breach of its representations and warranties, specifically, claims arising under provisions of the Canadian Anti-Spam Law.
20. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of law rules thereof. Any action arising out of this Agreement shall be brought in the state or federal courts located in Los Angeles, California and both parties submit to the exclusive jurisdiction of any such court.
21. Force Majeure. Except for payment, neither Party shall be responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control, such as riots, war, public disturbance, labor dispute, fire, explosion, storm, flood, acts of God or terrorism.
22. Contract Rights. The failure of either party to require or insist on strict or full performance of any provision of this Agreement, or to enforce its rights in the event of a breach hereof, shall not constitute a waiver of any other or succeeding breach or of any right to insist on strict and full performance in the future, and shall not limit or affect the enforceability of either the provision involved or any other provision of this Agreement. The rights and obligations contained herein shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto.
23. Entire Agreement. This Agreement sets forth the entire agreement between the parties and contains all the agreements, understandings, representations, conditions, warranties and comments made between them. All prior negotiations and agreements are merged into this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same Agreement. This Agreement may be executed and delivered by electronic facsimile transmission with the same force and effect as if it were executed and delivered by the parties simultaneously in the presence of one another, and signatures on a facsimile copy hereof shall be deemed authorized original signatures.